Protecting the Rights of the Displaced in Iraq

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Protecting the Rights of the Displaced in Iraq

May 1, 2003

Feature

By

Monette Zard

The current crisis in Iraq has confounded those who planned for large-scale refugee flows. The anticipated flows never materialized—but as with previous conflicts, a wave of internal displacement did result. Although huge numbers of people have returned home in the wake of the worst fighting, humanitarian agencies are still struggling to deal with at least one million internally displaced persons (IDPs) from this and earlier conflicts. Providing medical care, food, clean water, shelter, and protection—often to great numbers of people with life-threatening needs—is posing an enormous challenge. Meanwhile, further displacement could be spurred by sporadic fighting with Saddam Hussein's loyalists, inter-ethnic and retaliatory violence, and a general surge in crime.

Several United Nations agencies, together with a range of nongovernmental organizations, are poised to play a key role in Iraq's ongoing relief and protection operations. Key to their collective success, however, is whether or not the U.S.-led coalition has the ability and willingness to bring security to Iraq. Understanding the stakes in the post-war era requires taking a close look at Iraq's IDPs, the commitments of the UN agencies involved, and the legal obligations of the U.S. as the head of an occupying army.

Iraq's IDPs in Context

In contrast with the nearly two million people who fled to neighboring countries during the first Gulf War, this conflict saw most Iraqis stay within their homeland's borders. Their comparative lack of mobility may have been due, in whole or in part, to the frequently brutal control exercised by Hussein's regime. However, the harsh experiences of many refugees in 1991, when tens of thousands died of causes such as cold and hunger after being denied entry to Turkey, may have factored into the decisions of many. Other factors may have included uncertainty over whether neighboring states would open their borders to refugees, or a natural preference to stay close to home. Whatever the reasons, hundreds of thousands of civilians chose to escape the conflict by moving to the countryside to stay with family and friends.

Iraq's internal displacement problem is a longstanding one, however, that predates the most recent war. At the close of the 20th century, up to one million Iraqis were displaced within the borders of their own country. Conflict and displacement over the last 40 years have largely mirrored the ethnic and religious divisions of Iraq, an uneasy mosaic state (see sidebar) that emerged in 1921 under British colonial rule.

A Country Divided

Iraq has an Arab majority, along with minority populations of Kurds, Turkomen, Assyrians, Yazidis, and Armenians. The 90 percent of the population who are Muslim are further subdivided into the Shiites (60 percent) and the remaining combination of Sunni Arabs (traditionally dominant in economics and politics), Sunni Kurds, and Sunni Turkomen. The 10 percent non-Muslim population is largely Christian (Assyrians, Chaldeans, Roman Catholics, and Armenians). There are also small communities of Yazidis, whose religion incorporates elements of Christianity and Islam, and Mandaeans, who follow an ancient religious tradition.

Kurds have historically dominated the North, alongside a smaller population of Turkomen. Sunnis are concentrated in the center of the country, particularly around Baghdad, and Shiites make up the majority of the population in the South.

Tension between Iraq's majority population of Arabs and the Kurdish minority has often erupted into violence and displacement, as has as a long-running rivalry between Kurdish factions that has occasionally prompted intervention from outside actors such as Turkey and Iran. In addition, despite the avowedly secular nature of the Baath Party (which took power in 1968 and came to be headed by Saddam Hussein in 1979) the minority Sunni-dominated regime in recent years has waged an increasingly bitter campaign against the Shiites. The displacement problem has been further exacerbated by regional and global conflicts, most notably the 1980-1988 Iraq-Iran War and the 1991 Gulf War precipitated by Iraq's invasion of Kuwait.

Prior to the most recent conflict, it is estimated that at least 500,000-800,000 people were internally displaced in Kurdish-controlled areas in Northern Iraq. Many were pushed out of the cities of Kirkuk and Mosul, where Hussein's regime in recent years had stepped up its mass deportation of non-Arabs in an effort to alter the ethnic balance of the population in strategic, oil-rich areas. Thousands of Kurds were displaced in earlier campaigns, including the notorious Anfal operations of 1987-1988 that saw many thousands more killed.

In the center and south of the country, estimates of displacement (which are notoriously unreliable, given these areas' inaccessibility to UN and nongovernmental organizations under the Hussein regime) suggest the existence of some 300,000 IDPs prior to the most recent war. Displacement in these areas, particularly in the historically Shiite stronghold of the south, was spurred by an increasingly bitter government campaign to suppress dissent. Government troops demolished homes and employed other scorched-earth tactics, particularly in draining marshes in the south that had nurtured the unique lifestyle of the Shiite Marsh Arabs who lived there.

In terms of the 2003 war's consequences, a recently completed registration process found that some 260,000 people had been internally displaced and were now in Northern Iraq. The vast majority (89 percent) were housed with friends and relatives, and around one percent were living in tents. There are no reliable estimates of displacement in the south and center of the country as a result of this most recent conflict.

At the close of this war, major issues loom, particularly the conflict in Northern Iraq between Kurds and the Arab "settlers" installed in their former homes by Hussein's regime. Reports are now reaching the Western media of forced evictions of Arab families from areas around Mosul and Kirkuk by armed Kurds returning to reclaim land and property. In the absence of an organized process allowing for the orderly recovery of property or compensation, such vigilante actions may spark a new cycle of displacement and human tragedy. Here, as in many aspects of the relief and protection effort, the roles of the United Nations and the United States become critical.

The UN's Role

Efforts to protect and assist Iraq's IDPs, whether victims of this war or earlier conflicts, will be conducted under the auspices of Romero Lopes da Silva, who has been appointed the UN humanitarian coordinator for Iraq. Although da Silva's office has yet to re-deploy to Iraq from its planning base in Cyprus, many of the elements of the post-conflict humanitarian structure for Iraq are already in place. In the south and center of the country, the International Organization for Migration (IOM), an intergovernmental body, has been designated by the UN Office for the Coordinator of Humanitarian Affairs (UNOCHA) as the lead agency to register IDPs, manage camps, and organize the eventual return of the displaced to their homes or regions of origin. In the north, the United Nations Office for Project Services (UNOPS) will play a similar role.

While they are taking responsibility for these relief-oriented operations, neither IOM nor UNOPS has any mandate for or history of delivering protection to IDPs and ensuring that IDPs are able to access their rights under international human rights and humanitarian law. It is noteworthy, however, that no institution is mandated to provide for the protection needs of IDPs. The "IDP Guiding Principles," presented by Representative of the [UN] Secretary General Francis M. Deng to the Commission on Human Rights in 1998 lay out the normative framework and legal principles that should underpin such a role.

This places the burden of ensuring that IDPs are adequately protected on the UN humanitarian coordinator himself, guided by a senior advisor provided by the IDP Unit established in 2001 within OCHA to ensure a more effective system-wide response on the part of the UN to the protection and assistance needs of IDPs. Given the current insecurity in Iraq, the task is a large and complex one, and much depends on the resources, both human and financial, that the coordinator can harness to play a protection role.

In a step that holds potential for protecting these IDPs, da Silva's office has been working with the Office of the High Commissioner for Human Rights (OHCHR) to ensure that human rights issues are mainstreamed into humanitarian planning by the UN system. Once the humanitarian coordinator's office deploys to Iraq, its five-member human rights team will work in Iraq's five designated areas: the North, Center, Baghdad, Upper South and Lower South. The UN High Commissioner for Refugees (UNHCR) may provide further capacity to handle IDP concerns, since it often deals with internally displaced persons in areas where they mix with refugees upon returning home.

Along with the UN agencies, IDP protection is likely to depend in large part on an active and "protection-aware" NGO sector along with other like-minded humanitarian actors. This is acknowledged by da Silva's office, which envisages that NGO input will be key to effectively fulfilling its protection responsibilities. One such source of input could be the IOM, which is deploying "protection liaison officers" in the north, south, and center of the country. Their main task will be to channel information regarding IDP protection problems to the appropriate authorities—first and foremost, the office of da Silva, which will in turn need to raise such issues with the occupying power. Moreover, the International Committee of the Red Cross (ICRC), which is mandated to care for civilian populations in wartime, is likely to play a critical role in the short and medium term.

Questions already loom as to whether this level of human rights presence can adequately monitor and respond to the numerous rights issues that are likely to emerge. For the IDP issue alone, a five-member human rights team is minimal, and an expanded OHCHR presence is possible but by no means assured. Moreover, these investigators' ability to act will be highly dependent on the quality and quantity of information channeled to them by other agencies, particularly those in the NGO sector.

Ultimately, however, in the absence of an Iraqi state, efforts to ensure that IDPs are adequately protected are premised on the U.S. meeting its legal obligations as an occupying power to care for and ensure the protection and well being of the population under its control, including IDPs. Monitoring and advocacy efforts by the UN and its NGO partners will need to be structured around this goal.

The Role of the Occupier

By invading Iraq's ethnically and religiously fractured landscape, the U.S.-led coalition has inherited the legal obligations of an occupier under international humanitarian law. While the label of occupier has been contested by some within the U.S. administration, an overwhelming majority of jurists and commentators say that international law is crystal clear on the conditions that constitute "occupation" (see sidebar).

"Occupation"

Confusion has been created by assertions that the U.S. has not come to "occupy" but rather to "liberate" the Iraqi people. Under international law, however, occupation is a matter of fact, which, once established, gives rise to legal obligations on the part of the occupying power.

Article 42 of the Annex to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, notes that, "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends…where such authority has been established and can be exercised."

Article 2 [2] of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, further notes that an occupation can exist even where no armed resistance has been encountered in the process of establishing control over a part or the whole of a foreign territory.

The U.S., along with its allies, is clearly an occupying force and has legal obligations under international humanitarian law to protect the population of Iraq; in the first instance this requires appropriate steps to restore public order and safety.

Occupying powers are responsible for the fundamental human rights of the population under their control, including, first and foremost, their right to life. The occupying power is under a duty to restore and ensure public order and safety in the territory under its authority; members of minority groups and former members of the regime are equally entitled to protection from violence.

The legal framework for these responsibilities is established by the Hague Convention [IV] respecting the Laws and Customs of War on Land and its annexed Regulations respecting the Laws and Customs of War on Land of 18 October 1907; the Fourth Geneva Convention relative to the Protection of the Civilian Persons in Time of War of 12 August 1949; Article 75 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts [Protocol I], and the rules of customary international law.

Human rights advocates, among others, are voicing concerns that the U.S. is not living up to its duties to ensure law and order in areas under occupation. These critics point to widespread looting, indicative of a general breakdown of law and order, as well as retaliatory violence between Kurds and Arabs in Northern Iraq, as examples of the U.S. failure thus far.

Dangers Ahead

Should the U.S. not establish security, particularly by failing to curtail crime nationwide and restrain the ethnic and retaliatory violence that is especially prevalent in Northern Iraq, urgent safety concerns are likely to prevent UN agencies from gaining access to Iraq's enormous IDP population. This access is critical to their playing any kind of effective role with respect to meeting the protection and assistance needs of the internally displaced of Iraq.

In the final analysis, establishing effective protection for the internally displaced in Iraq and finding long-lasting solutions to their plight will require all agencies—whether national or international, NGO or inter-governmental—to work together. The ultimate objective must be to create the conditions for a fully functional Iraqi state to take its place in the international community and to fulfill its protection responsibilities toward its own citizens. But in the interim, lives and rights could be jeopardized if the U.S. fails to live up to its obligation as an occupying power to restore law and order. Security, the foundation of any protection system, is now the key to the future of Iraq's IDPs.